The Eggplant

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State Defies U. S. Rules on Grading Schools

Faced with the prospect of tagging nearly half of the state's school districts with failing grades under the federal accountability system, Texas Education Commissioner Shirley Neeley instead changed the rules to reduce the number of failing schools sixfold.

The move, described by some as a direct challenge to the U.S. Department of Education's enforcement of the controversial No Child Left Behind Act, sets up a potential showdown between Neeley and the Bush administration.

National education observers said Neeley's move makes Texas the first state to outright refuse to follow the law's requirements.

Texas receives more than $1 billion in federal money tied to compliance with No Child Left Behind. Some of that money could be in jeopardy, depending on how federal officials react to Neeley's decision. The TEA released grades Friday.

"It sets up, obviously, a rather interesting situation between the U.S. Department of Education and the state of Texas and you could see administrative funding cuts due to noncompliance," said Scott Young, a senior policy analyst with the National Conference of State Legislatures.

Just days ago, the Denver-based group issued a report criticizing the president's education initiative as an overly rigid piece of legislation that undermines states' efforts to educate students.

The disagreement centers on the federal government's requirement that schools exempt no more than 1 percent of their students from testing because of learning disabilities. Once a school crosses that 1 percent special education threshold, any additional students must be counted as failing. In Texas, nearly 10 percent of all students don't take the Texas Assessment of Knowledge and Skills because of their special education needs. Instead, they take a state-mandated alternative test.

It's a predicament that has hurt the ratings of schools in other states as well, including Michigan, where special education participation rates were mostly to blame for the failing grades that went to a third of that state's schools.

Waiver request denied
Last April, Neeley asked the Education Department for a waiver from the special education policy. It was denied in July, long after Texas students had already been tested.

But rather than go along with the ruling as did many other states that lost similar appeals, Neeley granted appeals from 431 school districts and 1,316 campuses that stood to fail under the federal guidelines. When she was finished, only 86 school districts and 402 campuses were on the "needs improvement" list. Those that make the list in consecutive years must allow their students to transfer to better schools.

"We really think this is more of a fairness issue," said Debbie Ratcliffe, a Texas Education Agency spokeswoman. "The poor school districts are caught between conflicting state and federal laws."

The number of passing schools varies wildly under the federal system because each state develops its own tests and sets its own standards. So comparisons across state lines don't work. In Alabama and Florida, for example, 77 percent of schools missed the mark, while all but 4 percent of Wisconsin's campuses got passing grades.

The Washington, D.C.-based Achievement Alliance criticized Neeley for giving the failing schools passing grades. Alliance members include Just for the Kids/National Center for Educational Accountability, the Education Trust, the Citizens Commission on Civil Rights and the Business Roundtable.

"This is a message that we're not going to pay attention to the indicators. Instead, we're going to change the indicators so that we as schools look good," said Delia Pompa, the alliance's director and a former Texas Education Agency assistant commissioner. "The focus shouldn't be on whether the school looks good, but on whether children are learning. If children are learning, eventually, the school will look good."

HISD benefited
The Houston Independent School District was among the hundreds of school systems that benefited from Neeley's decision. The district would have landed on the "needs improvement" list had Neeley followed the federal guidelines. The number of failing HISD campuses shrunk from 77 (more than a quarter of all Houston schools) down to 26 because of her ruling.

HISD officials said they had no reaction to Neeley's ruling.

"That is between the TEA and the U.S. government," said district spokesman Terry Abbott. "We simply follow the guidelines of the TEA."

All of the state's other major urban school districts — Dallas, Austin, San Antonio and Fort Worth — also would have missed the No Child Left Behind mark without Neeley's help. Local school districts that benefited from her ruling include: Aldine, Spring Branch, Spring, Alief, Klein, Pasadena, and Galena Park, the school district Neeley ran until Gov. Rick Perry appointed her education commissioner a year ago.

Perry is scheduled to be in Washington, D.C., this weekend attending the National Governors Association winter conference, beginning with the National Education Summit on High Schools.

Neeley did not notify federal education officials of her plan to change the ratings, Ratcliffe said.

Dozen states eye change
Texas is among about a dozen states lobbying federal education officials to raise the 1 percent limit, Ratcliffe said.

"We just saw this today," Aspey wrote in an e-mail. "It's a bit premature to comment. ... In general, if we find noncompliance, we have a range of administrative options at our disposal, which does include withholding funds."

Many states that oppose the enforcement of No Child Left Behind will be watching closely to see how the conflict plays out, Young said.

"The state needs to have the ability to decide on a case-by-case approach what the exemption level should be," he said.

"I wouldn't be surprised if the U.S. Department of Education tried very hard to address their concerns without it becoming much of a problem," Young said.

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